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A Post-Roe America Would Be a Never-Ending Nightmare

For women, turning abortion policy over to legislatures will mean men fighting over your rights.Photo: KAREN BLEIER/AFP/Getty Images

Whenever the constitutional right of a woman to choose abortion is in danger, anti-abortion advocates predictably recite the original talking points against Roe v. Wade and its successor decisions – especially the notion that the right to choose was invented out of thin air by a Court majority that was indifferent to the Constitution and hostile to democracy as exercised by state legislatures.

But increasingly, this litany of arguments for dispatching Roe in order to restrict abortion (supplemented by occasional cries of pain from those authentically conflicted by the issue and seeking some elusive compromise) coincides with the oddest thing: writers who come forward with arguments that transferring reproductive health care policy from the judicial branch to the legislative branch where it resided before Roe v. Wade would eventually, in the long run, become a good thing for the pro-choice cause. There was an effusion of such essays during George W. Bush’s second term when he appointed two Justices (Roberts and Alito) presumed by supporters and opponents alike to be inclined to overturn or at least dislodge Roe and the 1992 Casey v. Planned Parenthood decision that affirmed and modified it. Here’s how Scott Lemieux summed up the pro-choice, anti-Roe case in a rightly celebrated 2006 essay:

It is difficult to know when a contrarian idea has been repeated so much as to become the new conventional wisdom. At least in prominent liberal media outlets, however, the argument that pro-choicers would be better off abandoning Roe v. Wade has probably crossed the line. In The Atlantic Monthly, Bejamin Wittes’ 2005 article asserting that Roe v. Wade has been deeply unhealthy for abortion rights was followed up by a similar (although more detailed and nuanced) article in the June Atlantic by Jeffrey Rosen, also a prominent Roe critic in The New York Times and The New Republic. Richard Cohen opined in the pages of The Washington Post (after sniffing that he no longer see[s] abortion as directly related to sexual freedom or feminism) that liberals should untether abortion rights from Roe. Slate’s William Saletan took to the Post op-ed pages also to argue on behalf of moving beyond Roe and to dismiss the decision as obsolete. The argument usually contains an added political component – that overturning Roe would prove a boon to Democrats by waking a majority pro-choice electorate from its apathetic slumber.

Now that reproductive rights are clearly facing their biggest test since at least 1992, we’re seeing a revival of such arguments. The eternal refrain is that abortion policy set by state legislatures (or by Congress) will command a stronger and more durable consensus, and produce less polarization.

Self-styled “abortion rights activist” Robin Marty has argued that letting red states ban abortion will galvanize complacent pro-choicers who don’t really care about abortion restrictions that are already in place:

When the entirety of the Gulf Coast is abortion-free—a swath of land stretching from Texas through the Florida panhandle—or Midwesterners have to choose between Illinois or Minnesota for abortion care, unintended childbirth will jump to historically high levels. Abortion bans would exacerbate the already unaddressed issues of maternal mortality and child mortality, both of which the United States has the worst rates for among all developed nations. The real-life consequences of forced childbirth will become real for Americans for the first time since 1972.

That’ll teach us!

At least Marty understands that the anti-abortion forces controlling red-state legislatures aren’t going to say “I feel so much better now!” if Roe is reversed, and eagerly seek compromises, which appears to be the delusion embraced by the “uneasily pro-choice” Megan McArdle:

[I]t is Roe, more than any other opinion, that is driving both the radicalization and the judicialization of American politics, as pro-lifers fight like caged tigers to amend the law through the only avenue left open to them….

[T]he way to make abortion less contentious is to throw the matter back to the states so that people can argue about it. Debating the difficult decisions regarding gestational age and circumstances would force people to confront the hard questions that abortion entails, which tends to have a moderating effect on extreme opinions.

Returning the matter to the states would give most people a law they can live with, defusing the rage that permeates politics and has more than once culminated in acts of terrorism against doctors who perform abortions.

One wonders if McArdle and the voices which echo the fantasy of a post-Roe peace offensive have ever spent any time among anti-abortion activists, or observing a state legislature. Lemieux made short work of this argument back in 2006:

The pre-Roe period in state legislatures does not in any way comport with the romantic myths now being peddled by anti-Roe centrists. Far from being satisfied with legislative compromises, anti-choice activists were so well-mobilized in response to a few legislative reform laws that liberalization at the state level was essentially dead by the time Roe was handed down in January 1973…. The National Review wrote more about abortion in the three years before Roe than in the three years after.

The timing of the new arguments for, as McArdle puts it, “letting Roe go,” is astonishing. We are in the midst of a feeding frenzy of poorly-considered abortion restrictions that Republican-controlled legislatures are passing as fast as they can meet. Is that really an advertisement for turning the entire subject over to these same people? Yes, some of these laws are designed to produce litigation leading to the reversal or curtailment of Roe. But anyone who thinks anti-abortion activists and the major political party they control don’t want actually to ban most if not all abortions really hasn’t been paying attention very well for the last 40-some-odd years. Right now they are arguing with each other over issues like rape exceptions that affect a tiny handful of procedures, in the context of outlawing 99 percent of abortions or more. There’s no longer much of any visible opposition within the GOP’s cadres of elected official to the proposition that abortion should generally be illegal. The last pro-choice Republican members of the U.S. House are gone, with just two GOP senators expressing any audible doubts about outlawing abortion.

And lest we forget, the official platform of the Republican Party has since 1980 endorsed a Human Life Amendment to the Constitution that would not simply reverse Roe, but would endow the “pre-born” from the moment of conception in all 50 states with protected status as proto-citizens. Have they been kidding all these years? Are they just upset about judicial tyranny? Will they happily smile upon states in a post-Roe environment that accept what so many of them blithely call The American Holocaust? I don’t think so. The anti-abortion movement will be at least as avid as it is today to stop all the “baby-killing” when the constitutional obstacle to its goal is discarded.

The argument that returning abortion policy to the realm of plain politics will somehow broker foster peace and stability bugs me the most. It involves, of course, women giving up on this idea of having any “reproductive rights” they can rely on. They would henceforth depend on who controls their state’s legislature or the Congress a year or two down the road. Yes, conservative gains on the Supreme Court are one reason for the recent orgy of anti-abortion legislation in the states. But the other is simply that Republicans flipped 21 state legislative chambers and six governorships in a 2010 midterm landslide where abortion policy was rarely a major issue, and held on to most of those gains at least up until last year’s midterms. Should a woman’s ability to control her own body be contingent on every short-term political trend in whatever place they happen to live? Are red-state women just out of luck forever, unless they literally move like war refugees?

Beyond that, battles over abortion policy in a post-Roe world would dominate every state legislative session in any state where one party or the other doesn’t have complete control. Just tracking the bills being introduced daily to restrict this or that procedure or proscribe this or that motive for an abortion or shut down this or that clinic would require multiple Guttmacher Institutes, NARALs, and Planned Parenthood advocates. Should women really have to endure what might never be a better choice than illegal abortions or perpetual uncertainty?

My colleague Andrew Sullivan hopes that all this inequality and instability might be prevented by preemptive federal legislation setting abortion policy nationally, as proposed by Senator Elizabeth Warren (Warren, of course, is offering her proposal strictly as a back-up in case Roe is reversed, a possibility she loathes). Just maybe, if one party or the other has a governing trifecta with a big majority in the House and more than 60 Senators (or action to abolish the Senate filibuster), it might be able to pass a national abortion law–which would remain in force until the next election. In the last half-century, there have been only ten years in which one party controlled the White House and Congress. That’s a slender reed on which to place a national “solution” to abortion policy.

All in all a post-Roe world is likely to be a hellscape of endless battles, unrelieved uncertainty, and above all peril for women. However fragile the right to choose may seem today, it’s the Rock of Gibraltar as compared to a situation where every day could bring new laws and policies restricting choice, discouraging providers, and harassing those in need of services.

It is especially troublesome when allegedly pro-choice men persist in offering to bargain away–to quite literally compromise–women’s rights, in the pursuit of an illusory peace with those who don’t acknowledge those rights at all. My colleague Rebecca Traistr is right to express fury at their presumption. As presidential candidate Pete Buttigieg recently said:

“I think the dialogue has got so caught up on where you draw the line that we’ve gotten away from the fundamental question of who gets to draw the line,” he said. “And I trust women to draw the line.”

That’s a good place to start in contemplating the future of reproductive rights.

The National Park Service’s five major Civil War battlefield parks—Gettysburg, Antietam, Shiloh, Chickamauga/Chattanooga and Vicksburg—had a combined 3.1 million visitors in 2018, down from about 10.2 million in 1970, according to park-service data. Gettysburg, in Pennsylvania, the most famous battle site, had about 950,000 visitors last year, just 14% of how many it had in 1970 and the lowest annual number of visitors since 1959. Only one of these parks, Antietam, in Maryland, saw an increase from 1970. …

The number of Civil War re-enactors, hobbyists who meet to re-create the appearance of a particular battle or event in period costume, also is declining. They are growing too old or choosing to re-enact as Vietnam War soldiers or cowboys, said Mr. Varnell, 49 years old. …

More recent history is also damping interest, said Kevin Levin, author of a coming book on the war. The fatal 2015 shooting of nine black churchgoers in Charleston, S.C., by a white man who had embraced the Confederate battle flag and the 2017 white-nationalist rally around a Robert E. Lee statue in Charlottesville, Va., has transformed how people view Confederate imagery and, in turn, Civil War-related historic sites. …

Now, some museums and historical sites are working to draw a broader audience—younger visitors as well as more minorities and women—by telling a more complete story about the great conflict. Once underplayed subjects, such as slavery’s role in causing the war, are getting more prominence, with new exhibits in Richmond, Va., Atlanta and elsewhere.

The Achilles heel of Trump’s strategy is that his extreme positions are not fact-specific or nuanced and are easily disposed of as legally groundless. Judge Mehta specifically noted that the “legal issues presented do not require the court to resolve any fact contests because the material facts are not in dispute.” Because Trump challenged the very right of Congress to investigate these matters, the only facts the court needed to consider were basic facts that no one could possibly dispute.

That stands in stark contrast to prior disputes between the executive branch and Congress. For example, the dispute over certain materials subpoenaed by Congress in its investigation of Operation Fast and Furious resulted in litigation that took eight years to resolve. But the Obama administration did not take the categorical, aggressive approach that Trump has. Obama’s Justice Department produced some witnesses and documents and fought over other documents over which it claimed privilege. …

No court is going to rule that the Executive Branch can categorically refuse to produce evidence and witnesses from a criminal investigation of the president of the United States from the House of Representatives.

Trump’s team no doubt believes that once their initial arguments fail, they will advance more nuanced arguments that seek to protect only a limited subset of material from disclosure. But as any experienced litigator knows, a judge’s impression of a party’s position is influenced by the history of the litigation. Because Trump’s lawyers have not even paid lip service to our constitutional system at the outset, judges will be less inclined to take seriously their arguments later on. In addition, the decisions issued by judges denying Trump’s challenges will influence other judges who consider similar challenges brought by Trump to other Congressional subpoenas.

3:27 p.m.

Goodbye to all that, U.S. Senate edition

“This place is definitely broken,” said Senator Tom Udall, Democrat of New Mexico and a longtime advocate of government reform who surprisingly announced in March that he would not seek a third term in 2020 in his solidly blue state.

In assessing his political future, Mr. Udall said he had become convinced that he could do more to advance his progressive ideas on climate change, war powers and a comprehensive electoral overhaul by skipping another two years of relentless re-election fund-raising. Instead, he said, he intends to redouble his efforts in those areas in hopes of setting the stage for big changes should Democrats prevail next year, even though he won’t be back in the Senate himself.

“You don’t necessarily have to be there to see that they are completed,” he said.

Mr. Udall’s decision to not run again, discussed in an interview on Wednesday, showed how the gridlock infecting Congress and the wide political divisions in the country can frustrate even the most experienced lawmakers and make them rethink their careers. It also illustrates how overwhelming and time-consuming fund-raising for multimillion-dollar races can be, leaving lawmakers little opportunity for the work they are supposed to be doing.

When he announced his own retirement this month, Senator Michael B. Enzi, a 75-year-old Wyoming Republican who is the chairman of the Budget Committee, said he would rather spend his remaining time in the Senate working on budget issues than campaigning.

2:30 p.m.

The Republicans have a long way to go when it comes to recruiting and supporting female candidates

GOP consultants and candidates acknowledge their recruitment and resources lag far behind Democrats.And no centralized group exists to provide hiring advice, social media guidance, press training, or messaging tactics to candidates. Democrats, on the other hand, have the behemoth EMILY’s List network, as well as groups focused on recruiting immigrants, women of color, female veterans and more.

“The support structure needs to be more than the idea that you can get some PAC dollars from random PACs out there,” [former North Carolina House candidate Leigh Brown] said. “I didn’t know how to hire. I’m an outsider to this.”

Republicans are not blind to the problem. A growing number of outside GOP groups are dedicated to boosting female candidates since the House GOP’s official campaign arm doesn’t play in primaries.“Winning for Women” launched a new super PAC in response to the devastating losses Republicans suffered in 2018.

Germany’s government commissioner on antisemitism has suggested Jews should not always wear the traditional kippah cap in public, in the wake of a spike in anti-Jewish attacks.

“I cannot advise Jews to wear the kippah everywhere, all the time, in Germany,” Felix Klein said in an interview published Saturday by the Funke regional press group. The remarks were criticised by the Israeli president as representing a “capitulation” to antisemitism.

In issuing the warning, Klein said he had “alas, changed my mind compared to previously”.

Antisemitic attacks are on the rise in a number of European countries, and a survey of Jewish people across the European Union carried out in December found 89% of Jews feel antisemitism has increased in their country over the past decade, while 85% believed it to be a serious problem. Antisemitic hate crimes rose by 20% in Germany last year, according to interior ministry data, which blamed nine out of ten cases on the extreme right. There were 62 violent antisemitic attacks, compared to 37 in 2017. France has also seen a spike in violent incidents.

The US government’s most high-profile ambassador in Europe, Richard Grenell, said Jews in Germany should not conceal their religious identity, and urged them to wear kippot in defiance of a statement from Germany’s commissioner to combat antisemitism that Jews should avoid wearing kippot in public.

“The opposite is true,” tweeted Grenell, the US ambassador to Germany. “Wear your kippa. Wear your friend’s kippa. Borrow a kippa and wear it for our Jewish neighbors. Educate people that we are a diverse society.” …

Julie Lenarz, a London-based expert on antisemitism, wrote in response to Klein’s announcement: “This policy punishes victims and rewards perpetrators. Instead, Germany should issue an unequivocal warning to those who threaten Jewish life – far Right, far Left, or Islamist.”

Rabbi Abraham Cooper, associate dean of the Simon Wiesenthal Center, told The Jerusalem Post by email: “Unacceptable, Germany! Jews should never be relegated to second-class citizens. Stand with your Jewish neighbors, punish antisemitism from the extreme far Right, far Left and Islamist.”

Democrats Say They Don’t Want Presidents As Old As Their Two Front-Runners

ByEd Kilgore

There’s evidence Democrats would prefer not to have really old presidential candidates. Yet the two front-runners are over 75. What’s up with that?

5/25/2019

Trump’s wall money scheme hits a wall

A federal judge has temporarily blocked part of President Trump’s plan to build a wall along the southern border with money Congress never appropriated for that purpose. …

Gilliam wrote that the government’s position “that when Congress declines the Executive’s request to appropriate funds, the Executive may simply find a way to spend those funds ‘without Congress’ does not square with fundamental separation of powers principles dating back to the earliest days of our Republic.”

The law the administration invoked to shift funds allows transfers for “unforeseen” events. Gilliam said the government’s claim that wall construction was “unforeseen” “cannot logically be squared” with Trump’s many demands for funding dating back to early 2018 and even in the campaign. … About $1 billion has been moved from military pay and pension accounts, transfers that Gilliam ruled against Friday, but no money has been transferred from the emergency military construction fund for which the president declared a state of emergency in February.

life in pixels

Petitions Are Everywhere Because We Don’t Know How Else to Do Politics

ByMax Read

How are you supposed to fix the government — or Game of Thrones?

lawsuits

Harvey Weinstein Nears $44 Million Deal to Resolve Lawsuits: Sources

ByHalle Kiefer and Victoria Bekiempis

The tentative agreement would resolve lawsuits from Weinstein accusers, as well as the New York State attorney general.

impeachment

Does Trump Want to Be Impeached?

ByEd Kilgore

Is the president one step ahead of his opponents?

fake news

When It Comes to Viral Twitter, Trust But Verify

ByMadison Malone Kircher

Shane Morris tweeted an insane story about stealing heroin from a member of MS-13. Now he’s saying it was all lies.

happy sh*t

7 Actually Good Things That Happened This Week

ByMargaret Hartmann

Featuring royal babies frolicking, Barack Obama, and one very chill dog.

high drama

Trump v. Pelosi: Anatomy of a Feud

ByClaire Lampen

A timeline of the president’s ongoing fight with the Speaker of the House

5/24/2019

the national interest

the national interest

Laugh at Trump, Sure — But Also Watch What He’s Doing

ByJonathan Chait

While his authoritarian fantasies play out in farce before the cameras, behind the scenes he is managing to grasp the levers of power.

5/24/2019

Facebook remains very concerned about false information circulating on the platform

Facebook says it will continue to host a video of Nancy Pelosi that has been edited to give the impression that the Democratic House Speaker is drunk or unwell, in the latest incident highlighting its struggle to deal with disinformation.

The viral clip shows Pelosi – who has publicly angered Donald Trump in recent days – speaking at an event, but it has been slowed down to give the impression she is slurring her words.

Trump v Pelosi: how a ‘stable genius’ president met his match Read more

… Despite the apparently malicious intent of the video’s creator, Facebook has said it will only downgrade its visibility in users’ newsfeeds and attach a link to a third-party fact checking site pointing out that the clip is misleading. As a result, although it is less likely to be seen by accident, the doctored video will continue to rack up views.

5/24/2019

the national interest

the national interest

Trump Staff Dreads Traveling Overseas With Toddler President

ByJonathan Chait

On Trump’s Air Force One, the overnight is dark and full of terrors.

Politics

lgbtq rights

Trump Continues Drive to Protect Religious-Based Discrimination

ByEd Kilgore

The administration is fighting to repeal health-care protections and adoption rights for LGBTQ people, on behalf of his Christian right backers.

whoops

Here’s an Actual Nightmare: Naomi Wolf Learning On-Air That Her Book Is Wrong

ByYelena Dzhanova

Somewhere in the pantheon of anxiety dreams near “showing up to work naked” is “learning on-air that your book is totally wrong.”

5/24/2019

Thanks, Chip!

Rep. Chip Roy became the man who delayed $19.1 billion in disaster aid to communities throughout the country on Friday.

House leaders had planned to pass a multibillion-dollar disaster assistance measure by unanimous consent, but the Texas Republican objected on the floor.

Roy took issue with passing the measure without a roll call vote. He also complained that the legislation lacks offsets to prevent it from driving up the deficit and that congressional leaders left off billions of dollars in emergency funding President Donald Trump seeks for handling the inflow of immigrants at the U.S.-Mexico border.

5/24/2019

Nadler reassures people that he’s ok after appearing to pass out at event

House Judiciary Chairman Nadler: “Appreciate everyone’s concern. Was very warm in the room this morning, was obviously dehydrated and felt a bit ill. Glad to receive fluids and am feeling much better. Thank you for your thoughts.”

Sen. Menendez says the Trump admin has “formally informed Congress that it is invoking an obscure provision of the Arms Export Control Act to eliminate the statutorily-required Congressional review of the sales of precision-guided munitions to Saudi Arabia, the UAE and others.”

Scary moment at this press conference now, @RepJerryNadler appears to be dehydrated, perhaps low sugar as the conference was underway. They are clearing the room so he can get medical assistance. He’s conscious, drinking water and has just been fed an orange